- Former president Jacob Zuma is asking for leave to appeal directly to the Constitutional Court the interim interdict that was granted against his private prosecution of President Cyril Ramaphosa.
- Zuma argues that the High Court erred on several grounds in granting the interdict and that his “right to prosecute” is being denied.
- Zuma argued that Ramaphosa’s failure to investigate the National Prosecuting Authority was a breach of the NPA Act, while Ramaphosa described Zuma’s private prosecution as an abuse of court processes.
Former president Jacob Zuma is seeking leave to appeal the interdict against his private prosecution of his successor Cyril Ramaphosa to the Constitutional Court – the same court which sentenced him to 15 months’ imprisonment for disobeying its order to appear at the Zondo Commission and whose orders he publicly stated he would defy again if he doesn’t agree with it.
In his affidavit to the apex court, Zuma describes the interdict temporarily halting his private prosecution of Ramaphosa as “easily one of the saddest chapters in the history of injustice in South Africa”.
On 15 December, a day before the ANC’s national elective conference, Zuma launched his private prosecution against Ramaphosa, who stood as a candidate for the party’s leadership.
Zuma accuses Ramaphosa of “being [an] accessory after the fact to crimes committed by, among others, advocate [Billy] Downer” in alleged breaches of the National Prosecuting Authority (NPA) Act.
Downer is prosecuting Zuma on behalf of the State for arms deal-related corruption.
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Zuma is seeking to privately prosecute Downer and News24 specialist legal writer Karyn Maughan for allegedly violating the NPA Act by sharing court documents – filed by Zuma’s lawyers and the State – that contained a sick note from the former president’s military doctor.
Both Downer and Maughan have lodged applications to have that private prosecution declared an abuse of court process. Zuma argued that Ramaphosa’s failure to investigate the NPA – an institution supposed to be immune from political interference – made him an accessory after the fact.
Zuma was adamant that Ramaphosa had to appear in the dock on 19 January.
Ramaphosa brought an application in two parts in the Gauteng High Court in Johannesburg on 27 December. In part a, he is seeking to interdict Zuma from continuing with the private prosecution, pending the finalisation of part b. This part of the application is urgent.
In part b, he is asking the court to declare Zuma’s summonses unlawful, unconstitutional, and invalid or to declare the summonses and the nolle prosequi (unwilling to pursue) certificate unlawful, unconstitutional, and invalid and to set them aside.
READ | Six failed arguments: How High Court dismantled Zuma’s efforts to force Ramaphosa to appear in court
The High Court in Johannesburg ruled on the interdict on 16 January.
Deputy Judge President Roland Sutherland, Judge Edwin Molahleli and Judge Marcus Senyatsi found that Ramaphosa had shown “prima facie” that his right to personal freedom may be violated by Zuma’s efforts to prosecute him for alleged violations of the NPA Act.
This ruling is what Zuma is now seeking leave to appeal to the Constitutional Court.
At the core of this application is a constitutional right of an aggrieved person, who is denied his right to prosecute.
According to Zuma, a “holistic evaluation” of the matter will show that Ramaphosa has little prospect of success in part b of his application and in the criminal trial.
Ironically, Zuma – who launched multiple civil challenges to the corruption prosecution against him as part of his so-called Stalingrad defence – insisted that only Ramaphosa’s criminal trial court could hear his private prosecution challenge. This would have forced the president to appear in court for a case he maintains is abusive and legally unsound.
The full Bench found that there was legal precedent that made it clear that people accused of wrongdoing in private prosecutions could challenge the cases against them in the civil court. It also found that there was no real jurisdictional difference between criminal and civil courts.
“The notion that the only route for relief a party can invoke to contest the title of prosecutor is to raise the question of title in a special plea … is misconceived,” the full Bench ruled.
This is one of the aspects Zuma now wants to appeal, with one of the grounds that judges wear different coloured robes in the civil and criminal courts.
“The criminal courts are specifically created for criminal matters whilst civil courts are created to adjudicate over civil matters. There is a difference between the two and one court cannot and should not trample on the powers of the other,” argues Zuma.
“The mere fact that the civil courts and the criminal courts are governed by two separate statutes is sufficiently indicative of the vast differences between the two.”
When Ramaphosa’s interdict application was heard, advocate Dali Mpofu SC, for Zuma, argued that Zuma was stepping “into the shoes of the NPA”.
READ | Why Zuma was present in court for private prosecution postponement
The full Bench dismissed the notion that there is no distinction between a private prosecutor and the NPA.
“The contention advanced to us was that a private prosecution exercises statutory authority and must be treated alike. This is not correct. The respondent’s [Zuma] contention is untenable,” reads the ruling.
Duduzile Zuma, Dali Mpofu and Jacob Zuma during the private prosecution matter against Billy Downer and Karyn Maughan at the Pietermaritzburg High Court.
Gallo Images Gallo Images/Darren Stewart
The ruling states that the legislation that gives the NPA the authority to prosecute, or decline to prosecute, a person “must not be understood to be a delegation of statutory authority to the private prosecutor”.
“A private prosecution is properly so called – private not public,” the judges stated.
According to Zuma, this was an error and the “High Court failed to take into consideration the relevant provisions of the CPA [Criminal Procedures Act] which give guidance to conducting private prosecution and clearly regards them not as purely private matters”.
“The full court has created the totally incorrect impression that a private prosecution is purely a private matter despite the fact that the NPA preserves its power to take the case at any point or when the accused has been found guilty,” reads Zuma’s affidavit.
Zuma also argues that the full Bench erred in finding that Ramaphosa didn’t have an alternative remedy other than the interdict.
“On the contrary, there are a plethora of remedies available to the accused,” he stated.
H.E Prez Zuma has filed his Court papers for his application for leave to appeal the JHB HC judgment which exempted Prez Ramaphosa from attending his criminal trial on the 19 Jan 2023.[All journos that are in the Foundation Media WhatsApp Group have been sent the papers] pic.twitter.com/vMkXuUWOls
— JGZuma Foundation (Official) (@JGZ_Foundation) February 7, 2023
Part b of Ramaphosa’s review application has been set down for 17 and 18 May, while the private prosecution has been set down for 26 May.
In July 2021, Zuma was sentenced to 15 months imprisonment for contempt of court after refusing to heed the Constitutional Court’s order to appear before the Zondo Commission. He only spent a few months behind bars before being unlawfully released on medical parole.
At his first public appearance after his “medical parole” expired in October last year, he said: “The sad part was that I was arrested for no reason at all.
“The real reason was because I refused to heed the advice of judges of the Constitutional Court when they asked me to do something that was against the Constitution when they were trying to force me to answer questions even against my own will, which is against the law.
“When they insisted, I then said I would not go to their court; they could do whatever they wanted. I will repeat this again if they take the same stance,” threatened Zuma, News24 reported at the time.
“I decided to fight for our freedom and will not be forced back to oppression even by a judge. Even if they [the judges] were to say tomorrow that I must break the law as they were asking me, then I would still go against them.”